The Wrong Target
This month's terrorist attacks on Madrid subways should remind us that antiterrorism policies must not be left to politicians alone: All of us have a personal stake in making sure they are effective. Moreover, Spain's election day upheaval should motivate politicians to be honest with their constituents about terrorism risks and terrorist attacks and to listen thoughtfully to their concerns and criticisms.
Here in the United States, the more the public learns about U.S. government antiterrorism policies and practices such as the USA PATRIOT Act, the more it fears a loss of privacy, a chilling of dissent and other First Amendment rights, and the targeting and mistreatment of people on the basis of their race, religion, or ethnic background. Far from encouraging a debate about these issues, however, the Justice Department has dismissed such criticism as "mischaracterizing" or "spreading misinformation" about the Patriot Act. By this it means that occasionally someone erroneously attributes to the Patriot Act some affront to liberties resulting from the application of a different law or policy. Examples are the roundups and detentions of immigrants that followed September 11th, the continued detentions of U.S. citizens as "enemy combatants," and the FBI's spying on political groups. But must people wait until they are experts in all of our country's complex antiterrorism laws and policies before the Department Of Justice will take their criticisms seriously? If the DOJ really wants to prevent terrorism, it should stop protecting its favorite acronym and start listening.
Until that day arrives, avoiding a fight with the Justice Department over terminology couldn't be easier: If you are not sure whether the Patriot Act is to blame for some injustice, rattle off a few extra words, as in "the Patriot Act and other antiterrorism measures and practices," and you are covered.
Well done. Now that your criticisms are above reproach, let's shift the focus of the debate to whether the Act, measures, and practices are effective in preventing terrorism. Here are a few tests:
Do they have the local, national, and international approval and support needed to succeed? Are they protecting us by targeting the right people while ensuring that the rights of the rest of us are protected? Are they worth the costs?
THE SUPPORT TEST
No one expects the Justice Department alone to protect us from terrorism. That requires the whole world's vigilance and cooperation, from our local communities to our allies overseas, which in turn requires that we all understand the measures and agree that they are fair and just. Unfortunately, widespread government secrecy has made it impossible even for our elected representatives in Congress to find out what the Justice Department has been up to, whom it has been targeting, and why.
As for who supports the measures as "fair and just," don't look to the communities that have been unfairly targeted for detentions, harsh treatment, and deportation. People of Arab and Muslim descent who live in the United States would be justified in staying silent about people they suspect out of fear that they themselves might be detained. Ditto for anyone who relies on First Amendment protections. The FBI Joint Terrorism Task Force's grand jury subpoenas and gag orders for information about a Drake University antiwar forum, although they were later dropped, confirm widespread suspicions that we've returned to the golden age of J. Edgar Hoover's COINTELPRO, which targeted civil rights and antiwar activists for decades beginning in the 1950s.
Internationally, the Justice Department shouldn't look for much support from any of the 31 countries from which the more than 600 Guantanamo Bay prisoners originated or from more than two hundred countries whose citizens and residents are subject to the US-VISIT program. That leaves just 19 countries the U.S. government's profiling hasn't offended, and the combined population of seven of the 19 (Andorra, Brunei, Iceland, Liechtenstein, Luxembourg, Monaco, and San Marino) adds up to only about one million.
Nevertheless, the German court recently made a valiant effort to help by trying Abdelghani Mzoudi, whom it suspected of being a member of the Hamburg al Qaeda cell, only to release him after the U.S. government refused to provide access to testimony from captured al Qaeda leaders. The court later overturned a previous conviction on the same grounds.
The APPROPRIATE TARGET TEST
The Justice Department claims that its policies and practices are protecting us because there has been no terrorist attack in the U.S. since September 11, 2001. But is that true? No one has yet been charged for the fatal anthrax attacks more than two years ago. Furthermore, neither the Patriot Act nor other antiterrorism measures and practices prevented a terrorist from breaching the fortress protecting Capitol Hill with ricin earlier this year.
Have innocent people been hurt by the policies and practices? You bet. Approximately 5,000 men were rounded up after September 11th and detained for periods ranging from days to more than a year. Nearly all have been either released or deported, and not one has been charged with a connection to al Qaeda. While the men were being held, the DOJ refused to reveal their names for fear of helping al Qaeda. Now that virtually all of the detainees have been cleared of any ties to terrorism, the public should be suspicious of the DOJ's continued secrecy surrounding their identities. The hundreds of nonterrorists caged at Guantanamo for interrogation purposes are a U.S. public relations nightmare.
THE COST TEST
Those who are willing to give up some liberties (especially someone else's) in exchange for safety may want to consider the cost-benefit ratio: Under the Special Registration (NSEERS) program, approximately 87,000 men from North Korea and 19 primarily Muslim countries have submitted voluntarily to photographing, fingerprinting, and questioning. Not a single terrorism suspect has been found through this program, which cost U.S. taxpayers approximately $362 million last year alone. Pulling INS personnel from other duties for this unproductive detail has created an enormous backlog of green card applications, which in turn causes anxiety for people who must remain in the country illegally awaiting approval of their legal resident status.
It is impossible to calculate the long-term cost of unfair and ineffective policies and programs to the United States's reputation as a nation of laws. Our government's policies are lowering the standards for human rights elsewhere. It is also unreasonable to expect other governments and citizens of other countries to treat U.S. citizens, residents, and military more fairly when we visit their countries than we treat them when they visit ours.
THE FINAL ANALYSIS
We have the right to demand more effective antiterrorism laws and policies, and many members of Congress have shown their agreement by drafting, cosponsoring, and voting for bills and amendments to address some of the problems. The Justice Department has tried to prevent changes by denouncing its critics via the media, going on a "charm offensive," posting out-of-date statistics about Congressional and public approval of the Patriot Act on its taxpayer-funded web site, lifeandliberty.gov, and even threatening a presidential veto of the proposed bipartisan Security and Freedom Ensured (SAFE) Act, which addresses several of the public's concerns about the Patriot Act. Despite the DOJ's attempts to hide its actions, the world has seen enough to know that the DOJ has targeted thousands of the wrong people and has not yet caught the right ones. In the process it has sacrificed precious national and international good will that might help prevent more terrorism.
In our hasty retreat toward safety since September 11th, our nation has discarded parts of the Bill of Rights along the way. After reviewing U.S. antiterrorism policies and practices, the Bill of Rights turns out not to be an extravagance to be abridged during times of stress: It is the key to our effectiveness.
So far four states and 275 local governments, including New York City, Chicago, Los Angeles, Washington, DC, and Dallas, have passed resolutions or ordinances critical of the Patriot Act and other antiterrorism measures. Hundreds more communities and states are in the process of passing resolutions, ensuring that the debate will go on, whether or not the Justice Department chooses to take part.
Let's hope they do before it's too late. In the meantime, let's all keep talking.
Nancy Talanian is cofounder and director of the Bill of Rights Defense Committee, www.bordc.org.